Who can use this correspondence
This correspondence can be used by all employers.
Commentary
What is abandonment of employment?
An employee’s continuing failure to attend work, and his or her failure to respond to enquiries from your organisation about his or her non-attendance, may constitute a termination of the employee’s employment at the initiative of the employee through abandonment of employment. The circumstances of a particular case must show that the employee intended to end the employment by not reporting for work. It is important therefore, if abandonment of employment by an employee is to be established, that you are able to demonstrate that the employee knew, or ought to have known, that his or her unexplained or unauthorised continued absence from work meant that he or she was terminating their employment.
Industrial instruments and policies
Some industrial instruments (eg contract of employment, awards, workplace agreements etc) and workplace policies deal with abandonment of employment. Some specify a period of time which must pass and procedures which must be followed, before an employee can be deemed to have abandoned their employment. As such, before you can determine whether a particular employee has abandoned his or her employment, you must check to see if the employee is covered by an industrial instrument or workplace policy which deals with abandonment of employment, and follow the stated procedures.
Process
If there is no applicable industrial instrument or policy, then you should attempt to contact the employee if he or she is absent from work. At first instance, you should try and contact the employee by telephone and, if possible, leave a message explaining the reason for the call and asking the employee to contact you. It is advisable to keep a file note of the time and message left, in case this becomes an issue at a later time. You should also consider contacting the employee's nominated emergency contact. If no response is received after a number of attempts and the employee continues to absent himself or herself from work without explanation, you should send a warning letter to the employee which calls on him or her to explain the absence. The document you will create is intended to be the warning letter to the employee for this purpose.
If the employee does not respond to this letter, they should be sent a second letter (called the 'Abandonment of Employment — Confirmation Letter', which is another document available on HR Advance) confirming the abandonment.
All correspondence, including documents that are internal to your organisation, should be expressed to show that the employee has abandoned the employment. That is, the termination of employment was brought about at the initiative of the employee, not at the initiative of your organisation.
Important:
It should be remembered that an employee's failure to respond to contact made by you during a period of absence may not establish that the employee has abandoned the employment. The employee may be incapacitated or not contactable for genuine reasons. Each case must be assessed on its own particular circumstances.
An employee who is absent from work without permission and/or who has not notified your organisation of the absence may still be subject to disciplinary action. Each case where an employee provides a belated explanation for his or her absence must be assessed on its own particular circumstances.
If you are unsure whether or not an employee’s absence constitutes an abandonment of employment you should seek advice.
Important note to subscribers
The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. |
Further information
Further information on how to use this document can be found at the 'How to use correspondence' link on the Correspondence page of the HR Advance website.
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